Sierra Club – NC Legislative Update 07-03-14

Dear Friends,

The House passed the coal ash bill today - S 729 “Coal Ash Management Act of 2014” – which was spurred by the Dan River coal ash spill. You may recall that In February 2014, 39,000 tons of coal ash and 24 million gallons of wastewater laden with toxic heavy metals were discharged into the Dan River from a broken stormwater pipe beneath an unlined Duke Energy coal ash pit.

Coal ash has been virtually unregulated in the state, so the task of creating a regulatory framework to address both the 33 coal ash ponds in the state, but also the massive amount of dry ash generated by the Marshall plant in Catawba County, has been daunting. Rep. McGrady (R – Henderson), Rep. Samuelson (R – Mecklenburg) and Rep. Hager (R – Burke, Rutherford) carried the bill on the House side. Sen. Apodaca (R- Buncombe, Henderson, Transylvania) and Sen. Berger (R – Guilford, Rockingham) did so on the Senate side.

S 729 represents some significant strides in dealing with the coal ash problem in North Carolina, but it hasn’t gone far enough to address the continuing dangers many communities face from coal ash pollution.

A problem section was added by the House that appears to undermine ongoing citizen litigation to address groundwater contamination from coal ash ponds at multiple locations in North Carolina. Basically, the House bill rolls back current law, recently clarified in state Superior court, that gives DENR both the authority and the responsibility to require Duke Energy to immediately eliminate the source of groundwater pollution coming from its unlined coal ash pits. We will continue to ask the House and Senate to remove this provision before final passage of the bill.

The House bill also failed to remedy the Senate bill’s lack of clear standards to ensure that closure methods are protective of groundwater near coal ash sites. All 14 coal ash sites in the North Carolina are leaking toxic heavy metals into the groundwater. Without clear guidelines, this bill could allow coal ash at 10 of these sites to stay in place, continuing to pollute our groundwater, lakes, and rivers.

While the bill is not as strong as we’d hope would come out of the House, some positive elements of the coal ash legislation include:

setting a timeline, with fixed dates to close out all 33 wet coal ash ponds;

requiring removal of ash from ponds to dry, lined storage away from the water at 4 sites (but not necessarily at the other 10 sites – that’s left to be determined by new Coal Ash Commission);

setting minimum standards for landfill disposal of coal ash;

setting standards, requiring permitting and buffers for large structural fill projects; and

requiring a public process, public hearings, and public comment for coal ash site closure plans.

While some helpful amendments were added by House members, overall the House failed to significantly improve the bill from the Senate version. House members on both sides of the aisle pushed for a stronger bill but most were pleased, at the end of the day, to pass a bill that moves the state forward in a number of significant ways on coal ash. The final vote on the bill in the House was 94 -16.

Opportunity for Action:

Please thank House members who put forth positive amendments (listed below) to improve the bill. Some good amendments passed, others failed, and many were tabled (a procedural move to avoid a vote). Much like in the fracking bill debate, some of the most high-profile amendments were tabled instead of allowing a vote.

Passed:

Rep.Murry (R-Wake) – removed a requirement making capping in place mandatory for low-risk sites, expanded and improved closure options and added a study to incentivize the reuse of coal ash.

Rep.Baskerville (D-Granville, Vance, Warren) offered an amendment that would have prohibited Duke Energy from transferring the cost of coal ash cleanup to ratepayers.

Rep.L. Hall (D-Durham) offered an amendment that would have eliminated the variance procedure (added in the House version of the bill), which allows DENR to give leeway to Duke Energy on coal ash cleanup deadlines.

Failed:

Rep.Alexander (D-Mecklenburg) offered an amendment in committee that called for a baseline mortality and morbidity study in areas around coal ash ponds to better gage the effects of coal ash on public health.

Rep.Stone (R-Harnett, Lee) offered an amendment that would have added the Cape Fear plant, in his district, to the list of high priority sites, which will get fully cleaned up and all coal ash removed within 5 years. Stone’s amendment passed with a 57-54 vote but then leadership scrambled to flip votes, pulled a procedural move to reconsider the vote, and a second vote was taken of 54-58.

Rep.Hamilton (D-Brunswick, New Hanover) offered a good amendment that would have eliminated the possibility of disposing coal ash in open pit mines.

Rep.Meyer (D-Durham, Orange) offered an amendment that would have eliminated cost as one of the factors that the new Coal Ash Commission may consider when reviewing coal ash pond closure plans, thereby prioritizing environmental and public health considerations.

Rep.Fisher (D-Buncombe) offered an amendment to add a seat on the new Coal Ash Commission to a person who lives near a coal ash plant.

Rep.Harrison (D-Guilford) offered an amendment that would have deleted the very concerning section on compliance boundaries that appears to undermine ongoing groundwater contamination lawsuits by environmental groups, including the Sierra Club. This amendment highlighted the most notable difference between the House and Senate versions of the bill.

Looking Ahead:

Next the bill will go to the Senate for a vote of concurrence, likely next week. It is expected that the Senate will vote not to concur and will appoint conferees. The House will also appoint conferees. A final bill will be negotiated by members appointed as conferees. (note: conference committees are not open processes).

And later this year, in December, the EPA is scheduled to come out with a federal rule to address coal ash cleanup. The challenges that North Carolina has faced in developing comprehensive coal ash legislation shows that a strong EPA rule is needed more than ever to set national standards for coal ash disposal.

Thank you for all your efforts to communicate with legislators about this issue.